IMMIGRATION: Shootings by Border Patrol on the rise

One and a half years ago, Jesus Castro Romo was trying to sneak into the United States through Arizona's hilly backcountry when a Border Patrol agent on horseback spotted his group of about 12 travelers. They scattered. The agent zeroed in on Castro.

He claims the agent, Abel Canales, beat him, hurled insults at him and then shot him in the side before riding away. An emergency crew airlifted Castro to a hospital in Tucson, where he had three operations. He was deported in 2011.

Lawyers for the government said Canales acted in self defense, that Castro tried to throw a rock at him. Canales's lawyer did not respond to requests for an interview, and a lawyer for the government has declined to comment.

In January, Castro sued the U.S. government, a gutsy move for a Mexican citizen who entered the country illegally. The lawsuit is about compensation for lost income, but it also amounts to a last resort effort in a system where Border Patrol agents are rarely prosecuted for violence against migrants.

"They should pay for their mistake," Castro says today at his home in Nogales, little more than an hour from Tucson, south of the border. "They should compensate me for their error."

A months-long collaborative investigation among nonprofit newsrooms in California, Texas and New York examined fatal confrontations with border agents and found that at least 14 civilians died, most shot, since Oct. 1, 2009. This is despite declines in both illegal immigration and assaults on officers.

The investigation illuminated serious questions about follow up and accountability.

Border Patrol agents have been prosecuted for crimes in recent years including corruption, bribery and improper arrests, but rarely for situations involving lethal force.

Canales, for example, was indicted last October, but not for his actions in Castro's case. He is accused of taking bribes to allow drugs and illegal immigrants to be smuggled into the U.S.

Two weeks ago, a grand jury in San Diego took testimony in the death of Anastasio Hernandez Rojas, who died after being beaten and shocked in 2010 in San Ysidro. U.S. lawmakers called for an investigation of the agents' actions after a new video of the incident was aired in April by the PBS national television magazine, Need to Know.

Human rights advocates argue that fatalities are a part of a much larger landscape of abuse.

A humanitarian aid group based in Tuscon called No More Deaths issued a report in 2011 based on interviews with almost 13,000 migrants. The researchers found that 10 percent of those interviewed reported physical or sexual abuse by Border Patrol agents.

"This is an issue that's a systemic issue," said Danielle Alvarado, one of the authors. "It's not about a couple bad agents that aren't following their training or have an ax to grind. The reality is that Border Patrol is part of the largest federal law enforcement agency in the country, and so as a result these systemic patterns of abuse have a huge impact."

It's not just human rights activists who believe there should be more accountability and oversight.

George McCubbin, president of the National Border Patrol Council, the union representing 17,000 Border Patrol Agents and support staff, believes reforms leading to fewer fatal shootings by the Border Patrol are in order.

"If our employees are being put in positions where this is going to be a semi-normal action then we need to rethink as an agency how we're doing business out there," he said.

Customs and Border Protection declined to be interviewed for this project. A spokesman shared this statement:

"All CBP employees are expected to conduct themselves in a professional manner at all times. CBP stresses honor and integrity in every aspect of our mission, and the overwhelming majority of CBP employees and officers perform their duties with honor and distinction, working tirelessly every day to keep our country safe. CBP takes every allegation of misconduct seriously and fully cooperates in the investigation of such allegations."

Shawn Moran, vice president of the National Border Patrol Council, noted that agents are up against tremendous dangers and have every right to defend themselves.

"Border Patrol agents are not trained, nor paid, to withstand violent assaults without the ability to defend themselves. Rocks are weapons and constitute deadly force. If an agent is confronted with deadly force they will respond in kind. No agent wants to have to shoot another human being, but when an agent is assaulted and fears for his life then his hand is forced....

"While the loss of life and injuries are regrettable, it is due solely to the decision to attempt to inflict harm upon a United States Border Patrol Agent. The National Border Patrol Council stands behind the actions of the agents who do their duty every day, under extreme circumstances, along the southwest border," he wrote in an email.

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Statistics gathered from Customs and Border Protection and compiled by reporters show one fatality four years ago, and two the following year. In each of the last two years there were five, and four so far this fiscal year. The agency has declined to comment in these cases. Assaults against agents have been dropping since 2009.

The circumstances in cases reporters investigated for this project vary: Some of the dead were Mexican, at least one Central American, others U.S. citizens. Some were trying to cross illegally into the U.S. for the first time - a misdemeanor; others were allegedly involved in more serious crimes, like trafficking drugs or people. But they all died after a violent altercation with Border Patrol agents.

Even in cases where a video has captured an altercation at the border, there are generally distinct differences in what witnesses and law enforcement say happened. These cases balance the word of agents against the silence of the dead, and invoke self-defense protections in ways that are hard to challenge legally.

"Most of their encounters occurred out in the wilderness, if you will," said Peter Nunez, former U.S. Attorney in San Diego. "There's no camera, there's no citizens roaming around, you have almost no way to verify anybody's story."

"It can be done. It should be done," Nunez said of investigating and prosecuting agents who commit crimes. "These cases are difficult. You probably need more evidence than you would in a normal case, just because you don't know how juries are going to react."

County Attorney Edward Rheinheimer, who took a border agent named Nicholas Corbett to trial in Cochise County, Ariz., for fatally shooting a migrant in 2007, and lost twice to hung juries, said inevitably politics plays a part.

"When we have an officer involved shooting ... we evaluate it the same way we do every other case we evaluate," he said. "If you then introduce the element of Border Patrol agent and illegal immigration into the equation, then a whole new set of dynamics comes into the case .... because I think it's inevitable, especially in a border community or a border state, that the whole political aspect of the immigration issue is then introduced."

Pressures don't always come from the public. In the Corbett case, Rheinheimer said the Department of Justice was unsupportive of the prosecution. He wrote in an email:

"For me, the Corbett case was never about the politics of illegal immigration, or border security. It was about nothing more, and nothing less, than law and evidence. It was about nothing more, and nothing less, than fundamental constitutional principles of equal protection and due process.

"For DOJ, on the other hand, it had everything to do with politics. Their entire position on the prosecution was governed by politics. In the end, what it boils down to is that once you introduce politics into the criminal justice system, you no longer have a criminal justice system. And it doesn't matter which side of the immigration issue you come down on. When politics replace justice at the Department of Justice, everybody loses."

A spokesperson for the department declined to comment.

Through interviews, court records, police reports, eyewitness videos and photographs, the reporting collaboration pieced together the stories of several boys and men. It bore out what legal experts warned: there is a steadfast divergence between the versions of events as reported by the Border Patrol and what others claim occurred.

In one such incident, Sergio Hernandez Guereca, 15, died in Texas in 2010, shot by an agent for allegedly throwing rocks. A government source previously told the El Paso Times Hernandez was sought for human smuggling.

His death was filmed. The Department of Justice decided not to prosecute, calling the killing "an act of self defense."

In April it issued a statement describing an extensive, multi-agency investigation based on 25 witnesses and evidence not shared with the public, including: "civilian and surveillance video; law enforcement radio traffic; 911 recordings; volumes of CBP agent training and use of force materials; and the shooting agent's training, disciplinary records, and personal history."

Hernandez's family disagrees with the findings. So does the Mexican government. The family filed a wrongful death suit (after a prior lawsuit was dismissed), and the government of Chihuahua issued a warrant for the agent's arrest. A symbolic move, some might say, as chances of extradition are slim.

Moran, with the agents' union, said the Mexican government is not above reproach either.

"The government of Mexico has done their usual grandstanding where they hurled baseless accusations at the Border Patrol agents, fed criminals concocted stories, and meddled in the affairs of the United States. Mexico bears quite a bit of responsibility whenever one of its citizens dies or is injured along the border due to its allowing criminal organizations free-reign and its refusal to police its northern border," he wrote.

In another case, the official version of events contradicts what a dead man had to say. The case of Roberto Perez Perez was not included by reporters among the 14 Border Patrol-involved deaths because the cause of death was not clear.

Perez died in detention in January 2011. He was arrested while trying to reenter the U.S. at San Ysidro with a fake ID, half a year earlier.

Two documents provide insights into what he allegedly suffered. A few months before his death, Perez wrote a letter to a Mexican newspaper. He described how agents beat him until he started vomiting blood and blacked out, and then he was mistreated while in detention. He concluded his account with these words:

"Please publish everything that happened with respect to all these injustices and the humiliating way I have been treated since my arrest. It's like a veiled concentration camp, but the truth is that I was subjected to most blatant cruel and unusual punishment."

In a complaint filed with the DHS his partner decried his treatment and described how his condition following the alleged beating deteriorated over the course of several months. After one hospital visit, a wound caused by a syringe became infected, leading to his death, her complaint states.

An autopsy report found that the syringe contributed to his death, but was not the only cause.

"The cause of death is certified as cellulitis of right upper extremity with cirrhosis, hypertension, diabetes mellitus, and chronic substance abuse listed as contributing conditions. The manner is natural."

A DHS spokesperson said her complaint has been denied and the government did provide proper medical care.

Border Patrol agents often say they are targeted by rock-throwers, who are harboring illegal immigrants or stashes of drugs. Their statistics show incidents of rock-throwing increased in most years since late 2005 but they dramatically dropped off in the last two fiscal years.

The overall number of assaults against border agents is declining, according to CBP data. But several agents have lost their lives in recent years. In July 2009 an agent was shot dead by drug traffickers near Campo. Agent Brian Terry was killed in Arizona in 2010. And last year, a drug trafficker was sentenced to life in prison for running over agent Luis Aguilar in 2008 with his Hummer in California, near the Arizona border.

McCubbin, the Border Patrol council president, says agents are being ordered to patrol closer to the border with Mexico, where there's more potential for violent conflict such as rock assaults. Rock-throwing was cited as a factor in several of the 14 fatal shootings reporters investigated.

The falling number of apprehensions show border enforcement is working, McCubbin said, so drug traffickers and human smugglers are getting more desperate. He said he would never presume to question an agent's use of force.

"Unless you've been involved in a rocking incident there is almost no other recourse left for agents caught in the middle of this," he said in a phone interview.

When an agent fatally shoots someone, a clause in the union contract allows the agent to meet with a union representative before the investigation starts. From there, first local and then federal agencies can investigate and prosecute, culminating with the Justice Department.

"The crime determines the jurisdiction," said Mario Conte, former federal defender in San Diego. "There is no clear path ... Sometimes it becomes a turf war."

Because they work with prosecutors to build cases, law enforcement officers get more trust, experts said.

"We as prosecutors we take the word of law enforcement officers all the time. It comes with the territory," Rheinheimer said, "and we take them at their word unless or until we have reason to believe we can't take them at their word."

That trust also extends between officers and the public. Even with a thorough investigation and sufficient evidence, convincing a jury is another hurdle. Conte said the public's "slant slash bias" that a migrant "broke the law, they had it coming" and that agents "are out preserving our freedom" poses a significant challenge for prosecutors.

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Today, Castro walks with a cane, spends most of his time in bed in the small house he shares with his wife and young children. He takes pain pills by the fistsful. He needs another operation he can't afford.

Castro said he started working in a "dompe," or dump truck, when he was 14. He is candid in talking about work drying up, putting his life in Mexico on hold, and heading to the U.S. for a job. He had been deported, but continued to return.

Castro's lawyer, William Risner, is unabashed in saying Castro's lawsuit is about money. But he also said it's the only way to get justice.

The shooting cost Castro the ability to buy food for his family, send his kids to school. "In addition," he said, "the Border Patrol could do a better job of checking their agents, training them better, actually do things to make them do a better job, where it's safer for the people they encounter. Those are possibilities. But, realistically it's just money."

Castro said he used to see America as a place of opportunity, worth risks and sacrifices. Would he ever go back? Never, he says.

"Americans do not like us. Even more so the officials (Border Patrol agents)."